Citation Nr: 0618950
Decision Date: 06/28/06 Archive Date: 07/07/06
DOCKET NO. 04-14 653 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to recognition of the appellant's/veteran's son,
C.H., as a child for VA purposes on the basis of permanent
incapacity for self-support before attaining the age of 18.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and C.H.
ATTORNEY FOR THE BOARD
T. S. Kelly, Counsel
INTRODUCTION
The veteran had active service from December 1955 to June
1976. He died in December 2000. The appellant is the widow
of the veteran.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2003 rating determination of
the Montgomery, Alabama, Department of Veterans Affairs (VA)
Regional Office (RO).
The appellant and C.H. appeared at a Travel Board hearing
before the undersigned Law Judge in August 2004. After the
hearing, the appellant submitted additional evidence and
waived review of the evidence by the RO. 38 C.F.R. § 20.1304
(2005). Accordingly, the Board will consider this evidence
in the first instance.
FINDINGS OF FACT
1. The veteran's son, C.H., attained the age of 18 years in
September 1989.
2. The evidence demonstrates that C.H. was permanently
incapable of self-support due to mental defect when he
reached the age of 18 years.
CONCLUSION OF LAW
The appellant and veteran's son, C.H., was permanently
incapable of self- support upon attaining the age of 18
years, and may be recognized as the helpless child of the
veteran/appellant. 38 U.S.C.A. §§ 101(4)(A), 5107 (West
2002); 38 C.F.R. §§ 3.102, 3.57, 3.356 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
At the outset, the Board notes that any procedural defect
which may have occurred as a result of noncompliance with the
Veterans Claims Assistance Act of 2000 (VCAA) is rendered
moot by virtue of the appellant being granted the full
benefit sought on appeal.
Recognition of an unmarried person as a "child" of the
veteran turns, in large measure, on whether that person was
permanently incapable of self-support by reason of mental or
physical defect at the date of attaining the age of 18 years.
See 38 C.F.R. § 3.356(a) (2005); Dobson v. Brown, 4 Vet.
App. 443, 445 (1993).
Rating determinations will be made solely on the basis of
whether the child is permanently incapable of self-support
through his own efforts by reason of physical or mental
defects. The question of permanent incapacity for self-
support is one fact for determination by the rating agency on
competent evidence of record in the individual case. Bledsoe
v. Derwinski, 1 Vet. App. 32, 33 (1990). Rating criteria
applicable to disabled veterans are not controlling. See 38
C.F.R. § 3.356(a) (2005).
Principal factors to be considered in rendering a
determination of permanent incapacity for self-support under
38 C.F.R. § 3.356(b) are:
(1) The fact that a claimant is earning his or her own
support is prima facie evidence that he or she is not
incapable of self-support. Incapacity for self- support will
not be considered to exist when the child by his or her own
efforts is provided with sufficient income for his or her
reasonable support.
(2) A child shown by proper evidence to have been permanently
incapable of self-support prior to the date of attaining the
age of 18 years, may be so held at a later date even though
there may have been short intervening periods when his or her
condition was such that he or she was employed, provided that
the cause of the incapacity is the same as that upon which
the original determination was made and there were no
intervening diseases or injuries that could be considered as
major factors. Employment which was only casual,
intermittent, tryout, unsuccessful, or terminated after a
short period by reason of disability should not be considered
as rebutting permanent incapability of self-support otherwise
established.
(3) It should be borne in mind that employment of a child
prior or subsequent to the delimiting age may or may not be a
normal situation, depending on the educational progress of
the child, the economic situation of the family, indulgent
attitude of the parents, and the like. In those cases where
the extent and nature of disability raised some doubt as to
whether they would render the average person incapable of
self-support, factors other than employment are for
consideration. In such cases there would be considered
whether the daily activities of the child in the home and
community are equivalent to the activities of employment of
any nature within the physical or mental capacity of the
child which would provide sufficient income for reasonable
support. Lack of employment of the child either prior to the
delimiting age or thereafter should not be considered as a
major factor in the determination to be made, unless it is
shown that it was due to physical or mental defect and not
mere disinclination to work or indulgence of relatives or
friends.
(4) The capacity of a child for self-support is not
determinable upon employment only afforded solely upon
sympathetic or charitable considerations and which involved
no actual or substantial rendition of services. 38 C.F.R. §
3.356(b) (2005).
A review of the record demonstrates that psychological
testing performed on C.H. in September 1978 revealed that he
was at the pre-kindergarten/kindergarten level.
In October 1981, it was noted that C.H. was then enrolled in
the TMR (training mental retardation) unit for the fourth
year. Testing performed in October 1981 revealed that the
veteran's child had a mental age of 4 years nine months when
he was 10 years old. The findings were noted to place the
child in the mentally defective group (lower 1%) of
intelligence classifications. The examiner noted that the
child had no real strengths. It was reported that the
findings suggested that the child needed special assistance
in most learning situations.
At the time of July 1985 testing, the veteran's child was
determined to be in the mentally deficient range of
intelligence. It was noted that approximately 99+% of his
age group would have scored higher on the testing than he
did. Potential academic expectancy at that time was
approximately kindergarten level.
In a September 1989 report, C.H. was noted to be mentally
deficient when determining high school placement. The
veteran's child was subsequently enrolled in special high
school classes.
C.H. turned 18 in September 1989.
In an August 1993 report, C. Cowley, M.D., indicated that
C.H. was a patient of hers with mental retardation, which he
had had since birth. She stated that this mental incapacity
made him incapable of self support. She noted that the
condition was permanent.
In a December 2001 letter, M. Herndon, D.O., stated that he
had known C.H. for approximately four years and indicated
that it was obvious that he had decreased mental capacity.
He reported that it was his opinion that C.H. was mildly
mentally retarded.
In a May 2003 letter, Dr. Herndon indicated that C.H. had
mild to moderate mental retardation. He did not have a
driver's license and was unable to maintain a checkbook and
keep his finances. C.H. was noted to have to live at home and
to have to have adult supervision. Dr. Herndon indicated
that this had been a lifelong problem and would remain one.
In a March 2004 letter, the treasurer of Weaver City
indicated that C.H. worked for only a few weeks in 1997,
1998, and 1999. She noted that he had some mental problems
as well as anger issues.
In a letter received in April 2004, J. H., stated that C.H.
was very dependent on others for even minor things. He
indicated that he could not live alone and that he was not
able to financially support himself. In an April 2004
letter, D. J. noted that she had known C.H. for 10 years and
observed that he had a learning disability and was not
capable of taking care of himself.
In an April 2004 letter, J. F. indicated that C.H. could not
hold down a regular job due to a learning disability. He
also reported that he could not read or write.
In her April 2004 substantive appeal, B. H., the appellant,
reported that C.H. was not able to take care of himself in
any way. She noted that he had been permanently incapable of
self-support by reason of mental or physical defect since
birth.
In an October 2003 psychological report, C.H. was noted to
live with his mother. It was indicated that he dropped out
of high school in the 10th grade. Diagnostic testing
revealed moderate mental retardation.
Also of record is a November 2003 letter from the Social
Security Administration concerning a change in the amount of
C.H.'s Supplemental Security Income payments.
At the time of the August 2004 hearing, the appellant
testified that C.H. had a learning disability since he was in
school. She noted that C.H. had been in receipt of social
security disability benefits for the past six or seven years.
She further indicated that C.H. had attempted to move out on
several occasions but he was never successful She noted that
his attempts at semi independent living lasted a total of
about two months and ended up being disasters.
She stated that even during his periods of semi-independence
she still had to provide care and supervision, including
feeding him, doing his laundry, taking him to the doctor,
giving him money and handling his money. She noted that when
C.H. did work he would give all his money away. She
indicated that a lawyer currently handled his finances. Both
the appellant and C.H. testified that he was not capable of
presenting a claim on his own behalf. C.H. stated that he
needed his mother's help. The appellant stated that she
cooked, did the laundry and even shaved C.H. She noted that
none of C.H.'s attempts at work were successful.
In an August 2004 letter, Dr. Herndon indicated that C.H. was
developmentally delayed and illiterate. He noted that C.H.
could not live without supervision.
The record reveals that C.H. has been considered learning
disabled/mentally retarded since an early age. Testing
performed in 1985 while he was in school revealed that he
scored in the bottom one percent of his peer group for
intelligence. The Board notes that C.H. has lived at home on
an almost continuous basis, with the exception of a total of
two months of semi-independent living, when his mother still
cooked and cleaned for him and took him to doctor's
appointments, with the experiment being termed a disaster and
C.H. moving back home. The Board further observes that C.H.
is in receipt of social security supplemental security income
payments, with an attorney handling his money, as he is not
competent to do so on his own. Moreover, the August 1993
letter from Dr. Cowley, noted that C.H. was mentally retarded
since child birth and that this had made him incapable of
self support with the condition being permanent. The Board
also observes the statements from Dr. Herndon, who has
indicated that C.H. is mentally retarded and unable to live
without supervision.
Based on the foregoing, particularly the documentation dated
before C.H. turned 18, the Board is persuaded that when every
reasonable doubt is resolved in the appellant's favor, the
evidence shows her son was permanently incapable of self-
support by reason of mental defect at the date of attaining
the age of 18 years in September 1989. As the evidence
indicates that C.H. is currently incapable of self-support
and has been since attaining the age of 18 years, he
qualifies as a "helpless child" on the basis of permanent
incapacity for self-support. As such, this appeal is
granted.
ORDER
Entitlement to recognition of the appellant's/veteran's son
as a child for VA purposes on the basis of permanent
incapacity for self-support before attaining the age of 18 is
granted.
____________________________________________
SUSAN S. TOTH
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs